Is Obamacare constitutional? The legal saga continues

By guest blogger Robert Field:

Opponents of health reform are now one for three in federal court decisions. In the first two rulings on the law’s validity, judges threw out challenges and found the law to be fully constitutional. Earlier this week, Judge Henry Hudson ruled in a suit brought by the Virginia attorney general that a key part of the law is not.

This variation in decisions is not surprising. About two dozen suits have been brought against the law in courts around the country. Differing decisions on so complex and polarizing an issue are to be expected. Judges are not immune from personal predilections.

However, it is disappointing that the rulings so far have hewed so closely to partisan lines. The two judges who upheld the law are both Democrats appointed by President Bill Clinton, and Judge Hudson is a Republican appointed by President George W. Bush. This may be a harbinger of rulings to come, especially when the case eventually reaches the Supreme Court. We can only hope that the final word on the constitutionality of Obamacare is based more on law than on politics.

In the meantime, Judge Hudson’s decision may be more significant for what it does not say than for what it does. The ruling was quite narrow. It struck down the law’s individual mandate, which requires that all Americans have health insurance starting in 2014 or pay a penalty. However, it did not invalidate any of the law’s numerous other provisions.

Those 2,700 pages of the Act contain a wide array of elements that survived the ruling. Among the most important are those that create the exchanges through which individuals can purchase policies starting in 2014 and those that expand Medicaid to cover an additional 16 million people.

 Other key provisions that remain untouched by Judge Hudson’s decision are consumer protections, including coverage for adult children up to age 26, prohibitions on annual and lifetime caps in policies, and limits on premium hikes. Also surviving are incentives to spur innovations in care, including comparative effectiveness research, accountable care organizations, and medical homes. Many of these elements remain popular in opinion polls.

The judge also declined to stay implementation of the law pending final resolution of the case on appeal. Therefore, the rollout will continue, at least for now. Unless a judge in another of the cases rules otherwise, the reform train will be well down the tracks before the final judicial word is uttered.

All of this means that Judge Hudson’s ruling does not signal the inevitable demise of health reform. The law continues to stand a good chance of surviving the judicial challenges in some form.

Of course, other legal rulings await, including a key one by a Republican judge in Florida that is expected next month. The law must also endure a hostile reception in the new Congress and in many state governments. We still have a long way to go before its final fate is known.

To check out more Check Up items go to